Ms Joanne Dimolo Mitchell v Department of Education and Early Childhood Development

[2010] FWA 3686

[2010] FWA 3686

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996

s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Joanne Dimolo Mitchell
v
Department of Education and Early Childhood Development
(U2010/5424 and U2010/7000)

SENIOR DEPUTY PRESIDENT ACTON MELBOURNE, 10 MAY 2010

Introduction

[1] On 20 April 2010, Fair Work Australia sent a letter to Ms Joanne Mitchell by postal delivery and email directing her to file with Fair Work Australia and serve on the Department of Education and Early Childhood Development (the Department) by 30 April 2010 written submissions in support of her applications for an extension of time for the filing of her application 1 under s.643(1) of the Workplace Relations Act 1996 (Cth) (the WR Act) and her application2 under s.394(1) of the Fair Work Act 2009 (Cth) (the FW Act). Such correspondence arose from Ms. Mitchell’s failure to attend proceedings in Fair Work Australia on 16 April 2010 to deal with her extension of time applications.

[2] Ms Mitchell was told in the correspondence that if she did not file written submissions by 30 April 2010, Fair Work Australia would determine her extension of time applications on the basis of the material contained in the files on the matters.

[3] Ms Mitchell did not file any such written submissions by 30 April 2010. Accordingly, I will determine her extension of time applications on the basis of the material contained in the files on the matters.

Consideration

[4] Ms Mitchell’s employment was terminated by the Department in July 2009. Her application under s.643(1) of the WR Act is therefore invalid due to the operation of the FW Act from 1 July 2009. Her application under s.394(1) of the FW Act was filed with Fair Work Australia in January 2010, many months outside the 14 day period prescribed in s.394(2) for the making of such an application. The Department submits her s.394(1) application should be dismissed.

[5] Section 394 of the FW Act states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[6] I turn them to consider the matters in s.394(3) of the FW Act.

[7] In one of her applications in respect of the termination of her employment by the Department, Ms Mitchell states:

“I was only recently made aware that I could appeal about my treatment received by the Principal and Deputy Principal of Northcote HS by an Aboriginal Support Officer. I was unaware that I had the right to make this application until our meeting.”

[8] There is no material before me to indicate that Ms Mitchell first became aware of her dismissal after it had taken effect or that she took any action, other than making her unfair dismissal application following contact with an Aboriginal Support Officer, to dispute the dismissal. Similarly, there is no material before me on the matters in ss.394(3)(d) or (f). Ms Mitchell’s applications make assertions about the merits of her s.394(1) application and on the basis of those assertions I am prepared to accept her s.394(1) is not without merit.

[9] However, in the circumstances, I am not satisfied there are exceptional circumstances for allowing an extension of time for the making of Ms Mitchell’s s.394(1) application. None of the circumstances to which I have referred, either individually or in combination, are sufficient to satisfy me there are exceptional circumstances warranting Ms Mitchell being granted a further period for the making of her s.394(1) application. Accordingly, I decline to allow the extension of time sought by Ms Mitchell for making her s.394(1) application.

Conclusion

[10] Ms Mitchell’s application under s.643(1) of the WR Act is invalid. Ms Mitchell’s application for an extension of time for the making of her application under s.394(1) of the FW Act is refused. Her application 3 under s.643(1) of the WR Act and her application4 under s.394(1) of the FW Act are, therefore, dismissed.

SENIOR DEPUTY PRESIDENT

 1   U2009/5424.

 2   U2010/7000.

 3   U2010/5424.

 4   U2010/7000.

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